Labor: Entering a new paradigm with reasonable accommodation

How the EEOC’s final regulations implementing the ADAAA affects employers.

With the Equal Employment Opportunity Commission’s (EEOC) regulations now in effect to implement the ADA Amendments Act of 2008 (ADAAA), employers have entered a new paradigm for evaluating reasonable accommodation requests by employees.

In years past, one of the primary focuses in evaluating a reasonable accommodation request was to determine if the employee making the request truly had a disability within the meaning of the Americans with Disabilities Act (ADA). If the employee did not have such a disability, the employer had no duty to provide reasonable accommodation. Many employees who filed suits against their employers under the ADA ended up having their claims dismissed on summary judgment for failure to meet the predicate element that they had a disability within the meaning of the ADA. This included, for example, litigants with epilepsy, diabetes, multiple sclerosis, major depression and bipolar disorder.

Now, however, the ADAAA and the EEOC’s new regulations, which were published March 25, 2011, do away with the narrow definition of what constitutes a disability within the meaning of the ADA. Instead, the EEOC’s regulations set forth a broad definition that will invariably result in a greater number of employees being protected under the ADA, and thus entitled to reasonable accommodation otherwise not available before the change in the law. According to the EEOC, the determination whether someone has a disability should no longer require extensive analysis. Instead, the focus will now be on the “merits,” that is, whether the employer failed to provide a reasonable accommodation.

There are several key changes in the law that now will afford ADA protection to a broader class of employees. While an actual disability has always been interpreted as a physical or mental impairment that substantially affects a major life activity, courts in the past applied a narrow definition as to what qualified as a physical or mental impairment or a substantial impairment on a life activity.

The EEOC’s new regulations now make clear that a physical or mental impairment includes any physiological disorder or condition, cosmetic disfigurement or anatomical loss affecting one or more body systems, such as:

  • Neurological
  • Musculoskeletal
  • Special sense organs
  • Respiratory (including speech organs)
  • Cardiovascular
  • Reproductive
  • Digestive
  • Genitourinary
  • Immune
  • Circulatory
  • Hemic
  • Lymphatic
  • Skin
  • Endocrine

They also cover any mental or psychological disorder, including:

  • Intellectual disability (formerly termed mental retardation)
  • Organic brain syndrome
  • Emotional or mental illness
  • Specific learning disabilities

The EEOC’s regulations also state that major life activities include the operation of major bodily functions, including:

  • Functions of the immune system
  • Special sense organs and skin
  • Normal cell growth
  • Digestive
  • Genitourinary
  • Bowel
  • Bladder
  • Neurological
  • Brain
  • Respiratory
  • Circulatory
  • Cardiovascular
  • Endocrine
  • Hemic
  • Lymphatic
  • Musculoskeletal
  • Reproductive functions

The EEOC’s regulations also list of examples of major life activities:

  • Caring for oneself
  • Performing manual tasks
  • Seeing
  • Hearing
  • Eating
  • Sleeping
  • Walking
  • Standing
  • Sitting
  • Reaching
  • Lifting
  • Bending
  • Speaking
  • Breathing
  • Learning
  • Reading
  • Concentrating
  • Thinking
  • Communicating
  • Interacting with others
  • Working

Also under the new law, impairments that are episodic in nature or are in remission can qualify as disabilities if the impairment would substantially limit a major life activity when active. Not only will those with cancer in remission have protection under the ADA but also those with epilepsy, hypertension, asthma, diabetes, major depressive disorder, bipolar disorder and schizophrenia.

Additionally, when determining whether an employee is disabled within the meaning of the ADA, employers may no longer take into consideration the positive or ameliorative effects from an employee’s use of mitigating measures, except for ordinary glasses and contact lenses. In years past, disabled employees were denied coverage under the ADA if they utilized mitigating measures (such as medication, medical equipment, prosthetic limbs, hearing aids, mobility devices, etc.) if such measures, when used, prevented the employee from having a substantial limitation on a major life activity.

Because of the new broad definition of disability, ADA-related litigation will become one of the hottest areas of employment law in the coming years. The thrust of the anticipated cases, whether filed by the EEOC or private litigants, will be that the employer failed to provide reasonable accommodation to an employee who is considered to be disabled under the new definition of disability.

For that reason, companies seeking to minimize their exposure should evaluate their ADA policies and appropriately train their human resources managers and other staff persons who have the responsibility to make reasonable accommodation decisions.

However, it is important to keep in mind that, while the definition of disability has been greatly expanded, employers can still avail themselves of certain key defenses. For example, an employer is not under a duty to provide a reasonable accommodation to an employee who failed to request an accommodation. This may occur where the employer does not know the employee is disabled and does not even know that the employee needs a reasonable accommodation. Also, an employer can rely on the undue hardship defense if the proposed accommodation is unduly costly or difficult to implement. Additionally, there are situations where no reasonable accommodation exists for the employee to perform the essential functions of the job. And, finally, an employer can present the defense that the employee, even with the provision of a reasonable accommodation, presents a direct threat of safety to himself or others and was properly disqualified from employment.

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